Lawsuits for recognition of ownership of unauthorized buildings
Claims for recognition of ownership of an unauthorized building are considered by the courts in the order of claim proceedings and submitted to the local executive body. The defendants in such cases should be the akims of the relevant administrative-territorial unit, who head the local executive body. Also, depending on the category of the dispute, such claims may be filed against the owner of the land plot or against the developer (the person who erected the unauthorized building). The composition of other persons whose participation is necessary for the proper resolution of the case is determined by the court by the content of the subject matter and grounds of the plaintiff's claims, the defendant's objections and the laws to be applied. Paragraph 11 of the regulatory decree "On certain issues of dispute resolution related to the protection of home Ownership" clarifies that a claim for recognition of ownership of an unauthorized dwelling is brought against a local executive body. It has been established that the plaintiffs mostly correctly indicate the defendant. There are disputes when claims for recognition of the right to unauthorized construction by the plaintiff are made against an improper defendant. It follows from the meaning of Article 50 of the CPC that in the case of a claim against an improper defendant, the court, in order to prepare the case for trial, explains to the plaintiff his right to file an application for replacing the improper defendant with the proper one. The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.
Courts do not apply this rule in all cases. M. appealed to the court with a claim to the State Institution "Office of the Akim of Shymkent" for recognition of ownership of an unauthorized building erected on state-owned land. In this dispute, the proper defendant should be the akim of the relevant administrative-territorial unit, but the court did not explain to the plaintiff his right to replace the improper defendant with the proper one. By the decision of the Karatau District Court of Shymkent dated October 5, 2018, the claim was satisfied. Similar decisions were made by the courts of the Kyzylorda, Karaganda, and Pavlodar regions (A.'s lawsuit against the KSU "Office of the Akim of Shieli village" on recognition of ownership of an unauthorized building was satisfied with the decision of the Shieli District Court of the Kyzylorda region dated May 11, 2018; J.'s lawsuit against the KSU "Office of the Akim of Bukhar-Zhyrau district" on recognition of ownership of an unauthorized building satisfied with the decision of the Bukhar-Zhyrau District Court of the Karaganda region dated June 25, 2018; the claim of K., O. to the State Institution "Department of Construction, Architecture and Urban Planning of the Kachirsky district" on recognition of ownership of an unauthorized building was satisfied with the decision of the Kachirsky District Court of the Pavlodar region dated October 25, 2017). The generalization established that the courts do not apply Article 50 of the CPC because they do not properly prepare the case for trial (Chapter 16 of the CPC). On November 13, 2018, the Mayor's Office of Astana city filed a lawsuit against B. for the demolition of an unauthorized building. On November 20, 2018, the judge, having accepted the statement of claim into proceedings, scheduled the preparation of the case for trial on December 6, 2018. However, before the decision was made, he did not actually take any preparatory actions.
When considering the case at the court session, it was established that, according to the certificate of registered rights to immovable property dated January 24, 2019, the land plot on which the unauthorized construction was erected belongs to B., that is, to another person, and not to the defendant. In this regard, on January 28, 2019, the court issued a decision (the court of the Baykonyr district of the city of Nur-Sultan) to dismiss the claim. The claim for the demolition of an unauthorized building was pending in court for more than two months and did not receive proper permission, since the claim was denied due to the filing of a claim against an improper person, while the plaintiff was not informed of his right to replace the defendant.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
